Recent cases alertMerhi v The Queen [2019] NSWCCA 322 — in some circumstances good character should be given less weight, particularly if offender used good character to gain position of trust so as to enable offence to be committed — different situation arises where offender has not obtained position of trust with specific purpose of committing offence and demonstrated prior good character of long period of time whilst so employed.R v Jousif [2017] NSWSC 1299 — good character not significant mitigating factor in bribing foreign official offence as but for good character offender would not have had opportunity to tender for large infrastructure project.Cavuoto v Reis [2017] ACTSC 235 — offender’s good character may be mitigating factor in using carriage service to harass offence, but suggests offender should have understood seriousness of actions and likely effect on victim.
*Guidance from these cases has not yet been incorporated into the commentary

1. Overview

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
…
(m) the character, antecedents, age, means and physical or mental condition of the person

2. Meaning of Character

‘Character’ has been interpreted broadly by the courts and goes to good character. In R v Gent [2005] NSWCCA 370, Johnson J (McClellan CJ at CL and Adams J agreeing) observed at [49] that:

It has been said that there is a certain ambiguity about the expression “good character” in the sentencing context. Sometimes, it refers only to an absence of prior convictions and has a rather negative significance, and sometimes it refers to something more of a positive nature involving or including a history of previous good works and contribution to the community…

Despite the views expressed in Gent (and the authorities which have cited it with apparent approval), however, in my opinion the better view as to the relevance of good character to be applied in cases of child pornography is as expressed by McHugh J in Ryan, and by this Court in SD. In Ryan, a case involving multiple sexual assaults on young boys over a long period, McHugh J said:

In considering a prisoner’s good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Secondly, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner’s otherwise good character will vary according to all of the circumstances of the case (footnotes omitted).

2.1 Distinguishing ‘character’ from ‘antecedents’

The terms of par (m) also make it clear that “character” and “antecedents” are viewed by the Parliament, as by the common law, as separate considerations. Each of them is relevant to sentencing. “Antecedents” refers to any past criminal conviction, agreed or proved. Of course, past criminal convictions may also be relevant to a court’s assessment of the “character” of the person being sentenced. However, for a very long time, the absence (or existence) of prior convictions and the fact that a person is a first offender have been regarded as separate and special considerations in sentencing. The absence of prior convictions (quite apart from issues of character) will usually attract more lenient punishment. In part, it recognises the fact that a first offender’s lapse may be treated as exceptional, atypical and out of character. In part, it also reflects the experience of the criminal justice system that many of those who come before courts for sentencing are repeat offenders who, for that reason, must be treated more seriously because they have been repeatedly shown to be in breach of the law and have repeatedly obliged the mobilisation of the agencies established by society to defend it from crime.

A first offender may, or may not, otherwise have a good character. He or she may simply have been lucky in not having been apprehended before. But this fact does not justify disregard for the separate consideration of a first offender’s status as such, apart from any consideration of the character of that offender. The express differentiation between the two concepts in s 16A(2)(m) makes this point abundantly plain (emphasis added).

If a sentencing judge considers an offender’s antecedent criminal history of little relevance, those prior offences should not then be relied on to establish bad character. 2

In Pfeiffer v The Queen [2009] NSWCCA 145, McClellan CJ at CL (Simpson and Buddin JJ agreeing), considered the sentencing judge to have erred in characterising the offender to be of bad character because of several minor offences that were otherwise ‘given little if no weight.’ McClellan CJ at CL noted at [18]:

The applicant submitted, in my opinion correctly, that if his Honour concluded that the prior offences were stale and of no consequence then the appropriate conclusion was that the applicant was otherwise a person of good character.

3. Operation of s 16A(2)(m)

Section 16A(2)(m) states that character evidence that is relevant and known to the court must be taken into account. The weight attributed to such evidence will depend on all relevant circumstances. 3

In Ryan v The Queen [2001] HCA 21, a majority of the Court held the sentencing judge had fallen into error by refusing to take into account the offender’s ‘unblemished character and reputation.’ 4 Kirby J observed at [102]:

The evidence of good conduct, or of matters which reveal redeeming features of the offender’s character, tendered as relevant to sentencing will rarely, if ever, be discarded as immaterial to the sentencing function. The evidence may sometimes be disbelieved. It may sometimes be overridden by the objective seriousness of the offences or by countervailing evidence or by other considerations. But it is a mistake in sentencing to treat such evidence as irrelevant to the task at hand.

Sentencing is not a mathematical process (Pearce v R (1998) 194 CLR 610 at 624 [46]). Various factors have to be weighed. The otherwise good character of the prisoner is one of them. It is a mitigating factor that the sentencing judge is bound to consider. But the nature and circumstances of the offences for which he or she is being sentenced is a countervailing factor of the utmost importance (emphasis added).

The rules of evidence do not govern the receipt of information concerning character at sentencing.

3.1.1 Offending has occurred over an extended period of time

Less weight is usually given to good character where the offending has occurred over an extended period. In Ryan v The Queen [2001] HCA 21 Callinan J stated at [174]:

In exercising a sentencing discretion, less weight has been given to previous good character in circumstances in which the offence is not an isolated act. When the crime or crimes are part of a prolonged course of criminal activity, less weight will usually be given to the apparent good character and record of an accused.

When the activity is engaged in for profit, over a significant period of time and with a large number of transactions, the prior good character of the offender is of less significance than might otherwise be the case. 6

3.1.2 Good character has provided the opportunity to offend

An offender’s prior good character may carry less weight where prior good character placed them in a position which enabled them to offend. In Valsamakis v The Queen [2016] NSWCCA 156, the offender was a customs officer who had commited drug importation offences. Hall J, (Bathurst CJ and Hulme J agreeing), reaffirmed the sentencing judge’s remarks at [31]:

[P]rior good character was generally of less weight as a mitigating factor for a drug offence and his prior good character was necessary for his gaining employment as a Customs officer.

Similarly, the Court noted in R v Dickson (No 18) [2015] NSWSC 268 at [114] that the offender’s qualificaitons and experience as an accountant and as a person of good character, ‘provided him with the opportunity to commit the offences for which he was convicted.’

3.1.3 When the need for general deterrence is strong

Courts have considered the weight given to good character must be balanced against the need for general deterrence. The Court held in R v Hay [2009] NSWCCA 228 at [128]:

As to good character, whilst it is conceded that Mr Hay was previously of good character, it is put that this is not as significant a matter when the need for general deterrence is strong. 7

[T]he need for general deterrence may displace, to some degree, the benefit which might otherwise attach, although for the reasons identified in Cameron v The Queen (2002) 209 CLR 339, it is not to be ignored.

3.2.1 Drug Importation

Good character has been held to be of limited relevance in drug importation cases as it may create the impression of legitimacy and enable the offending. 8 In R v Leung [2002] NSWSC 858, the Supreme Court of New South Wales held at [51]:

It has been repeatedly said however, that good character is only of limited relevance in relation to narcotics cases, since its presence is something which syndicates can use to their advantage, in presenting an air of legitimacy to their operations, and in lulling a false sense of security at Customs barriers:Regina v Ferrer-Esis (1991) 55 A Crim R 231. However, by parity of the reasoning applied in relation to sex offenders, by the High Court in Ryan v The Queen [2001] 75 ALJR 815, it cannot be entirely dismissed as a mitigating circumstance (emphasis added).

In R v Gent [2005] NSWCCA 370, [55], the Court cited with approval the following passage from R v Leroy [1984] NSWLR 441 that explains the rationale for reduced emphasis on good character:

This court and other criminal courts have said on many occasions that, in the drug traffic in particular, the circumstances that the accused person has a clear earlier record will have less significance than in other fields of crime. Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because their records, their past and their lifestyles are not such as to attract suspicion. It is this, in particular, which has led the courts to take in the case of drug trafficking a view which does not involve the same degree of leniency being extended to first offenders.

Less weight given to good character will not be relevant where good character did not enable the commission of the offence. In R v Yuan [2015] NSWCCA 198, Hamill J, in dissent, noted that less weight being given to good character will not be applicable in all drug importation cases. Hamill J noted at [79]:

The authorities establish that an offender’s good character and/or lack of criminal antecedents may have less weight in a case where the fact of those qualities has been used to facilitate the commission of the offence or to avoid detection. However, I am unable to accept that this is an approach that commends itself generally to drug offences or to drug importation offences. The weight to be given to prior good character will vary, depending on the circumstances of the case. Further, in the absence of a provision such as 21A(5A) of the NSW Crimes (Sentencing Procedure) Act, the fact of an offender’s prior good character and lack of criminal record remains a matter to be taken into account. To state the obvious, such an offender must generally be entitled to expect a less severe sentence than an offender with an extensive criminal history (emphasis added).

Hamill J noted the offending conduct did not rely on the impression created by the offender’s good character thus a discount for good character was applied. Hamill J continued at [80, 82]:

In the present case, I am unable to conclude that the respondent used his prior good character to facilitate the importation. The consignee was listed as “Jack Godden”. The respondent signed for the consignment using the name “Jack Golden Yuan”. His lack of criminal record (in his name) did not impact on the ease or otherwise of detecting the importation. The drugs were imported inside furniture and the respondent had a furniture business but this did not depend on a lack of prior convictions or on the respondent’s general good character as attested to, for example, by his wife. The prosecutor acknowledged at first instance that there was “no evidence that he’d previously imported anything at all”.

…

It may be that the different approach that I have taken to the weight to be afforded to the respondent’s good character is the reason that I would impose a less severe sentence than that favoured by Hoeben CJ at CL and Davies J (emphasis added).

Hamill J noted he would have imposed a 13 year custodial sentence with an 8.5 year non-parole period, 9 whereas Hoeben CJ at CL (Davies J agreeing) imposed a 15 year custodial sentence with a 10 year non-parole period. 10

3.2.2 White-Collar Offences

Mr Hall is now 66 years old. He has no relevant criminal convictions. Ordinarily that would demonstrate good character, which ought to receive some favourable recognition in sentencing. However, ASIC brought civil penalty proceedings against Mr Hall in 2004. The matter proceeded before Bergin J. Her Honour made a number of declarations that Mr Hall had acted dishonestly in the exercise of his powers and the discharge of his duties as a director of companies in the Clifford group. They are not findings made beyond reasonable doubt. They are not criminal convictions. They are not, for the purposes of sentencing, a matter of aggravation (Weininger v The Queen (2003) 212 CLR 629 at 638). They are, nonetheless, an aspect of Mr Hall’s character and antecedents which show that the offence now being dealt with is not an aberration (cf s16A(2)(m)). Even were it the case that Mr Hall had good character, that fact would not be a significant mitigating factor in the context of “white collar” offences such as insider trading (R v El Rashid (unreported, NSW CCA, 7.4.95) per Gleeson CJ) (emphasis added). 11

The rationale for good character having less significance for white-collar offences is that, for such crimes, it is generally good reputation and public standing which place the offender in a position where they are able to commit the offence. 12 The court held in R v Rivkin [2004] NSWCCA 7 at [410]:

Subjectively, reliance was placed upon the appellant’s position as a person of hitherto impeccable character and integrity, who had not been previously found to have transgressed any law regulating the securities industry, who had played a significant and active role in community and charity organisations, and who was well respected. His Honour did not overlook that circumstance, it being a matter specifically addressed in the reasons for sentence. However, the relevance of good character is of lesser significance for white-collar crimes, since it is that factor which normally places the offender in a position whereby he or she is able to commit the offence:R v El Rashid, NSWCCA 7 April 1995 per Gleeson CJ at 3 (emphasis added). 13

However Rivkin was distinguished in R v Curtis (No 3) [2016] NSWSC 866 where McCallum J held that good character will be given limited weight if the offender’s good character did not put them in a better position to commit the offence. It was noted at [35]:

It has been suggested in some cases involving white collar offences that good character is not a significant mitigating factor because it is the fact of good character that places such persons in a position to commit offences of that kind. I do not think that proposition is applicable in the present case, since Mr Curtis was not the insider. His ability to trade on instructions given by Mr Hartman was not enabled by his good standing (emphasis added; footnotes omitted).

McCallum J continued at [35] that Curtis’ prior good character was still given reduced weight for two reasons. Firstly, the offences were committed over a lengthy period of time, and secondly, white collar offences call for the imposition of deterrent sentences. 14

In R v Sigalla [2017] NSWSC 52, Mr Sigalla was convicted of 24 counts of dishonestly using his position as a director to gain a benefit for himself or a third party. Adamson J found the offender’s prior good character was of less significance because it put him in a position of trust and the offending occurred over an extended period of time which demonstrated a lack of good character. Adamson J stated at [102]:

The offender has, with a minor exception, no criminal record. On this basis he is entitled to be treated as of prior good character. However, this matter is of limited weight in the present context for two reasons. First, had he not been of good character he would not have been placed in such a position of substantial trust with access to such significant funds. Secondly, the offending conduct took place over a period of more than two years in circumstances which demonstrated considerable deception, ingenuity, opportunism and greed (emphasis added).

3.2.3 Child Exploitation Offences

Less weight has been accorded to the otherwise good character of an offender convicted of child exploitation offences as it may create the impression of legitimacy and enable the offending. 15

In R v Gajjar [2008] VSCA 268, [27] the Victorian Court of appeal held it was open to the sentencing judge to give less weight to prior good character.

However good character will not be completely irrelevant. In R v Hogan [2015] SASCFC 102, the offender, a Jesuit priest, was charged with federal and state child exploitation offences. Parker J (Kourakis CJ and Nicholson J agreeing) noted at [59] that in the Victorian Court of Appeal case DPP (Cth) v D’Alessandro [2010] VSCA 60, [21] ‘limited weight must be given to an offender’s prior good character’ when sentencing for child exploitation offences. However the plurality continued at [72]:

While of lesser importance in a case such as this, his past good character and service cannot be ignored. That observation may also be made in relation to the loss of his career, life-long vocation and previously outstanding reputation (emphasis added).

Courts will place greater emphasis on general deterrence where an offender has been convicted of procuring for sexual purposes. The Court in R v Gajjar [2008] VSCA 268 noted at [28]:

That is not to say that less weight is to be accorded to good character in any absolute sense. It is rather to recognise that, when greater weight is attached in the balancing process to general deterrence, it necessarily follows, at least in a relative sense, that less weight will be accorded to what might otherwise be significant mitigating factors.

In R v Gent [2005] NSWCCA 370 [65]–[66], the Court distinguished the applicant sentenced for importation of child pornography as he was not in a direct relationship of trust with the child and the offence did not require him to be of good character.

Despite the views expressed in Gent (and the authorities which have cited it with apparent approval), however, in my opinion the better view as to the relevance of good character to be applied in cases of child pornography is as expressed by McHugh J in Ryan, and by this Court in SD. In Ryan, a case involving multiple sexual assaults on young boys over a long period, McHugh J said:

In considering a prisoner’s good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Secondly, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner’s otherwise good character will vary according to all of the circumstances of the case.

And in SD, a case of sexual offending against a young girl, the Court (Ashley Redlich and Priest JJA) observed:

As is made clear in Ryan, a sentencing judge is always bound to consider the ‘otherwise good character’ of the person to be sentenced. In so doing the judge does not take into account the offences for which he or she is being sentenced. If a person is of good character that fact must always be taken into account. However, the weight to be given to a person’s good character will vary according to the particular circumstances of the case … (footnotes omitted; emphasis added).

Priest JA continued at [94] that good character is to be given weight along with general deterrence.

[S]o long as a sentencing judge always bears steadily in mind that general deterrence must be seen as a prominent factor in the exercise of the sentencing discretion for child pornography offences, a judge is entitled to give such weight to good character as is appropriate in all of the circumstances of the particular case. 16